Category Archives: 28 CFR 75

Does 18 U.S.C. 2257 Violate the Fourth Amendment?

The Free Speech Coalition has obtained a landmark ruling applying limited fourth amendment protections to prevent unannounced inspections of records kept under 18 U.S.C. 2257.  Specifically, in Free Speech Coalition, Inc. v.  The Honorable Eric H. Holder, Jr, EDNY (09-4607) (July 18, 2013), [READ CASE HERE] the United States District Court for the Eastern District of Pennsylvania ruled that
[T]he Court finds Sections 2257 and 2257A and their corresponding regulations to be constitutional under the First Amendment, both as-applied and facially. It also finds the Statutes and regulations to be constitutional under the Fourth Amendment, except for in one regard – the allowance of inspections at the residences of producers, without prior notice, cannot be justified on this record.
Id. at 2.

          The basis for the ruling was that the government could not demonstrate that the requirement met the constitutional standard. As the Court stated, “[g]iven these two streams of evidence in the record – demonstrating advance notice would not undermine the regulatory scheme, but a lack of such notice significantly burdens producers who maintain records at home – the Court finds the regulations’ lack of a notice requirement, as to searches at bona fide residences, unreasonable …” Id. at 69.

          The Court focused on the fact that many producers of adult content keep the records in their homes. Therefore, the requirement that the FBI be allowed to inspect the records without advance notice meant that the residents would be burdened by the need to remain on premises to allow access. This burden was found to be unconstitutional.

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© 2014 Nissenbaum Law Group, LLC

What Are The Identification Requirements Under 18 USC 2257?

In order to avoid criminal liability under 18 U.S.C. §2257 (“2257”) and its related regulations (“Regulations”), such as 28 C.F.R. 75, it is important for those producing adult explicit content to be familiar with the basic identification rules that the law requires.

In order to comply with 2257’s record-keeping requirements, producers are required to (a) obtain certain actor identification and (b) maintain that information in a prescribed manner.

As required in Section 75.2 of the Regulations, the actor documentation should be in the form of a picture identification card. That Section requires that when producing adult content, the Custodian of Record must maintain documentation of “the legal name and date of birth of each performer, obtained by the producer’s examination of a picture identification card prior to production of the depiction.” 28 C.F.R. 75. Section 75.19(b) specifically defines the requirements for the picture identification card as follows:

1)      It must be issued by the United States, a state government (or political subdivision thereof, or a U.S. territory)

2)      It must bear the photograph, name and date of birth of the person identified.

3)      It must provide specific information that is sufficient for the issuing authority to confirm its validity, such as a passport, Permanent Resident Card (“Green Card”), or employment authorization document issued by the United States, a driver’s license or other form of identification issued by a state or District of Columbia; or a foreign government-issued equivalent of any of the documents listed above when the person who is the subject of the picture identification card is a non-U.S. citizen located outside the United States at the time of original production and the producer maintaining the required records, whether a U.S. citizen or not, is located outside the United States on the original production date.

4)      It must be valid as of the original production date.

28 C.F.R. 75.19(b).

In addition, the producer should maintain the identification documentation in the prescribed manner. Producers are required to include and keep a copy of the document that was examined before the creation of the adult work within a record-keeping system as detailed in section 75.2(a)(1) of the Regulations. That Section states that “the records shall also include a legible hard copy or legible digitally scanned or other electronic copy of a hard copy of the identification document examined.” 28 C.F.R. 75.2(a)(1).

Examples of identification documents that comply with the regulations include:

1)      A valid U.S. passport (or, if the performer and producer are both outside the U.S., a valid passport issued by a foreign government).

2)      A valid state identification card.

3)      A valid state driver’s license.

4)      A valid identification from either a state college or university, so long as it contains a clear picture of the person identified along with their legal name, date of birth and document identification number or some other information that allows one to confirm the document’s validity.

Examples of identification documents that might not sufficiently comply with the regulations include:

1)      A Social Security card.

2)      A valid passport issued by a foreign country for any performer where the performance that creates the content subject to 2257 regulations is in the U.S.

3)      A valid identification from a private college or university.

4)      An identification document that does not contain a clear picture of the person identified.

5)      An identification document that is invalid.

The consequences for violating 2257 are very serious, including the possibility of penalties and incarceration. Knowing the law’s requirements, and what forms of identification are sufficient to meet those requirements, are critical to complying with the law.

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© 2012 Nissenbaum Law Group, LLC

In addition to 2257, You Need to Also Comply with the Summary of Protocols Under 28 CFR 75

It is important to keep in mind that although 18 U.S.C. 2257 is the statute (law) that relates to recordkeeping for adult content sites, there are regulations that interpret and expand upon the statute. These regulations begin at 28 CFR 75.

One striking thing about the regulations is that it there were major revisions to it as of  March 18, 2009; the application to content was made much broader after that date. Many of the changes were expressed on two levels: first, the type of content was expanded and second, the requirements were in many cases reduced based upon the level of that content.

In order to comply with these regulations, it is critical that a thorough analysis be done to determine whether the content is covered by the regulations, and if so, to what extent. This review should be conducted by counsel, if at all possible.

Comments/Questions: gdn@gdnlaw.com

© 2011 Nissenbaum Law Group, LLC